DealsOnTheWeb Daily Deal: OneCall's Weekend Sale - 20 Great Items at Great Prices All Weekend Long
TMO Exclusive - Court Papers Name "Tiger" Leak Defendants, Apple Seeks Damages [UPDATED]
by , 7:45 PM EST, December 21st, 2004
A college student from Raleigh, North Carolina is the nucleus of a lawsuit filed Monday by Apple Computer. Court documents obtained by The Mac Observer reveal the names of three people being sued by the company for allegedly distributing "Tiger," the company's next major Mac OS X release. Those same documents show that Apple is seeking an injunction against the defendants, as well as unspecified damages.
Apple's court filings indicate the company took a systematic and deliberate approach in finding and tracking the movements of both the Tiger builds and the defendants' alleged actions. The company alleges that the three members of the Apple Developer Connection (ADC) -- Apple's in-house developer network -- violated their membership agreement by downloading and distributing the Tiger builds through BitTorrent, a very popular peer-to-peer file-sharing network.
merkin, desicanuk, and dmsmac
Apple's court filings allege that one Doug Steigerwald, a.k.a. "merkin," a resident of Raleigh, North Carolina, downloaded Tiger Build 8A294 from Apple's ADC Web site, and made it available through BitTorrent, where it was then further distributed by many other people, including the two other defendants.
"To enable faster downloading by others," Apple alleged in its court filings, "Steigerwald used the computing resources of a university in violation of institutional rules and policies. Steigerwald was so eager to distribute the Apple Tiger Build 81294 Software, that he began to transfer the file even before he had installed and tested the software on his own computer."
Apple further provides quotes it alleged Mr. Steigerwald made through BitTorrrent, which Apple refers to as 'the Torrent Website:' "In a posting on the Torrent Website, Steigerwald, using his alias 'merkin,' declared 'I'm trying to spread it [the file containing the Apple Tiger Build 8A294 Software] out before I install. [...] I'll install it once there a few more seeders."
Apple also contended that Mr. Steigerwald "used the computing resources of a university in violation of the institutional rules and policies of that university." Not named is the university itself; Raleigh, North Carolina is the home of some 11 colleges and universities, including North Carolina State University.
Apple further alleges that some 2,500 copies of the Tiger build were distributed starting from Mr. Steigerwald's efforts. Of the more than 2000 people who may have been involved in trading the file, Apple is suing only two others, Vivek "Sunny" Sambhara, a.k.a. "desicanuk," of Atlanta, GA, and David Schwartzstein, a.k.a. "dmsmac," of Norwalk, CT.
Like Mr. Steigerwald, Apple contends that Messrs. Sambhara and Schwartzstein are both ADC members. Unlike Mr. Steigerwald, however, Apple is accusing the other two defendants not of distributing a file obtained directly from Apple, but of redistributing the file first obtained by Mr. Steigerwald.
BitTorrent
BitTorrent is, in effect, the next generation of file sharing technologies. The network functions without a central server, relying instead on its users to both track and provide bandwidth and computing power to distribute files. One user makes available a file, and every user that then downloads that file becomes a server, too. Each user provides different blocks of the file to other users, forming what is known as a "swarm" of mini-servers, and spreading out the load in the process.
For a full and detailed explanation of how BitTorrent works, visit Wikepedia for a description that includes illustrations.
While BitTorrent is commonly known to be a vehicle for trading copyrighted materials, it is also used for many and varied legitimate uses. For instance, one of those uses is the distribution of Linux distributions. Several Linux distributions are officially distributed through BitTorrent, a process that has made it faster and easier for many users to get new Linux builds, and makes it substantially cheaper for the developers in the process. All of the bandwidth is provided by and paid for by the users.
Whether or not Messrs. Samhara and Schwartzstein obtained the file directly from Apple, however, the company's court filings clearly assert that the two violated their ADC membership agreements by allegedly participating in the distribution of the files to third parties.
"An ADC member who received a seed key or Pre-Release Software from an ADC member," Apple wrote in its court filings, "is prohibited by the ADC Agreement from transferring the key or software to any person other than an ADC member who works for the same entity."
For each of the defendants, Apple notes they agreed to not "'transfer, copy, or disseminate' Pre-Release Software to anyone other than '[his] employees and contractors who have an existing ADC membership.'"
Apple obtained the names of the three defendants from posts on a BitTorrent tracking site. Tracking sites, such as SuprNova.com, allow users to post the different files they wish to distribute through BitTorrent. In addition, some BitTorrent clients provide information about the users actively trading any particular file.
In its court filings, Apple offers quotes from each of the three defendants relating to the distribution of the Tiger build.
Damages
Apple is seeking two things from its civil lawsuit, an injunction preventing any (alleged) further distribution from the defendants, and damages.
"Maintaining Pre-Release Software as a trade secret is essential to Apple's ability to compete in the markets for personal computer hardware and software," Apple wrote in its court filings. "If Apple's competitors had access to Apple's Pre-Release Software, those competitors could benefit economically from the knowledge gained from that access by directing their product development or marketing efforts to frustrate Apple's plans. This strategic advantage to Apple's competitors could, in turn, severely harm Apple."
To that end, Apple told the court that it "is entitled to recover from Defendants the damages sustained as a result of these breached of the Agreements. The amount of such damages cannot be determined at this time, but will be proven at trial. Apple is further entitled to recover from Defendants the gains, profits, and advantages that Defendants obtained as a result of these breaches. Apple is currently unable to ascertain the full extend of these gains, profits, and advantages, but will prove the value thereof at trial."
Apple is seeking a jury trial.
Brad Gibson contributed to this article.
Observer Comments
Tue Dec 21, 2004 10:17 pm Subject: Apple May Collect 25 Cents
Tue Dec 21, 2004 11:59 pm Subject: Apple May Collect 25 Cents & Apple May Collect 25 Cents
HAHAHAHA. That was a good one.
QuoteGuest wrote:
And they can refund Reality's 2 cents.
Reality, do you spend all of your free time behind your keyboard attempting to feign intelligence on message boards or is there some company out there unlucky enough to be wasting money on your income and network useage?
Wed Dec 22, 2004 12:35 am Subject: RC, Will MS be able to copy Meta Data?
Not before Longhorn is released - it's just too hard for them, no matter how much you love them.
Apple will show them how to do it and they still can't get it right.
As for NDA's - they need to be defended or they have no standing - not just for Apple, but for any company in any industry. MS, however, probably don't need NDAs as everyone knows they will just copy Apple.
Wed Dec 22, 2004 12:38 am Subject: Just another opinion
I believe that if you copy/steal/download/borrow or whatever you want to call it when you acquire commercial software without buying it and you make money out of it, then you are actually to blame and you should be punished accordingly. If you are a student, don't have or make money out of the software, then it's not such a big deal. I'm a developer myself and I know it hurts to steal my software, but I consider that the people who are stealing it would probably not buy it anyway, so I'd like to think that by letting them steal it, I'm actually broadening the field of potential buyers. I count on the fact that they won't use it for commercial use and if they make money out of it, they'll pay for it. If they don't use it to make money, then they probably would not have bought it anyway, because it's too expensive or not worth it etc. It's a thin line, nevertheless. Apple is indeed being a little aggressive, but they are not 100% wrong in doing so. I read the forums as well. They don't seem like they are making money out of it and they indeed seem like they have some morals. It's a bunch of fanatics, just like the ones that kept Apple going during the bad times. Probably the same ones.
QuoteGuest wrote:
I have to feel for these guys. Reading the forum posts on that torrent site's message boards, it looks like it's a community full of Mac fanatics and Apple's just going to end up pissing a whole bunch of people off in a nightmare for public relations. While many people do disagree with piracy, some people simply can't afford the sort of software they need to do their jobs. Consultants in particular have that problem because they have to be able to support their customers in a variety of software, but if they bought every video and graphic application there was, they wouldn't be able to provide the services they do at the prices they do.
It's also kind of surprising since, reading through this torrent site's forum, it looks like the admins have tried their best to comply with Apple's demands and remove the offending content and stop subsequent seedings. Why Apple can't just stop at disabling their ADC access is beyond me, this is beyond proving a point ... it's meant to be mean, punative, and honestly it makes me wish I bought a Dell rather than a new G5.
Wed Dec 22, 2004 8:21 am Subject: What a silly thing to say
QuoteGuest wrote:
... it's meant to be mean, punative, and honestly it makes me wish I bought a Dell rather than a new G5.
Why would you say that? I never get that comment. Are you trying to hurt Apple? If so why? If this happened to Dell would you say "I wish I would of bought a G5 instead of a new Dell"? Please explain this comment to me. Does your G5 not meet your needs now?
The bottom line is… this guy is in the wrong. He broke a contract that he signed. It doesn't matter how poor/rich he is. It doesn't matter if he is 18 or 88. He took a chance and he got busted. Apple has the right to do what they feel is necessary to protect their intellectual property.
How much this hurts or helps Apple is subjective and is very debatable.
Wed Dec 22, 2004 9:58 am Subject: These guys are idiots... they deserve to be sued...
Never underestimate the power of human stupidity.
Posting a prerelease commercial operating system for all to download. What kind of thoughts go through someone's mind before doing something so astonishingly stupid and thoroughly dishonest?
I suppose I could understand if it were some GPL nazis who were protesting the evil corporation Apple. They should be clapped in irons too but I would understand their motovation.
What a bunch of losers...
Wed Dec 22, 2004 10:03 am Subject: Affording ADC access
I'm sorry but if you're a developer and can't afford the annual $500 it takes for ADC membership, then you're in the wrong business. If you can't make enough money on your software to pay that fee, then how can you hope to make enough money to feed yourself. Find work elsewhere, and please stop calling yourself a software developer - you're not.
Wed Dec 22, 2004 10:35 am Subject: I don't think Apple is all that much hurt
Let me explain. If anyone can sign up for the ADC, then anyone who's interested in getting the secrets ahead of time (i.e. MS) can get them for the fee. So, all Apple lost is the fee and not the trading secrets as they put it. The kids didn't steal source code. Besides, most of the features were already known. One could claim that the 2500 people that downloaded Tiger were going to pay 500 each to be in the ADC, so Apple lost that money. I very highly doubt it though these people would actually pay to get the prerelease. They just got it becasue it was there for free and I bet that they are not using it on their real system, they just installed it on some machine or partition to play with it, unless they're really insane. Either way, I can't see these people using the prerelease and not buying the real version.
Indeed it was a violation of agreement and indeed the kids are in the wrong. But I don't think that in the particular case Apple got very hurt. Apple itself has released public betas before, so that they don't pay beta testers to do the job. Therefore, I don't think it's that bad.
Wed Dec 22, 2004 1:14 pm Subject: I must've been confused...
So, stealing is OK if it doesn't materially affect the victim. Apple is a multi-billion dollar company, so the theft of a few tens of thousands of dollars is OK.
I mean Martha Stewart only netted a few thousand dollars from her insider trading deal. That really didn't affect you and me; and, after all, it really didn't make her that much rucher - she should be allowed.
How about pickpockets - they don't really steal enough to matter in the grand scheme of things - why not let them do it without troubling ourselves with punishing them. I mean, really, how much hurt can they do.
What a stupid way to justify theft, plain and simple...
I just said that Apple is not very hurt. I never said that it's right or that we should all do it. I did mention that the kids were wrong to do it. It's not justifiable. I just said that I don't see how this releases trading secrets, since anyone interested in getting the "secrets" could register to be in the ADC and get them just fine. I'm sure MS is already doing this. And I don't think that Apple is getting hurt as much as it is by stealing FCP Pro for instance. Either way it's not right, but the fact is that it's not getting hurt as much and that's all I said. Unlness I'm missing something.
Maybe my comment about it "not being that bad" got misunderstood. This doesn't mean it's right, let's all do it. It mean that it's much better than stealing a production version that sells for 1,000, which is something that is happening as we speak in a much broader scale. And there is a difference in how much you steal. This is why a court has the choice of putting you in jail for 2 to 10 years for example. Because if you steal $2.00 or $2,000,000.00 matters. And again, no it's not right in either case, but it's different.
Quotewmduncan wrote:
So, stealing is OK if it doesn't materially affect the victim. Apple is a multi-billion dollar company, so the theft of a few tens of thousands of dollars is OK.
I mean Martha Stewart only netted a few thousand dollars from her insider trading deal. That really didn't affect you and me; and, after all, it really didn't make her that much rucher - she should be allowed.
How about pickpockets - they don't really steal enough to matter in the grand scheme of things - why not let them do it without troubling ourselves with punishing them. I mean, really, how much hurt can they do.
What a stupid way to justify theft, plain and simple...
Wed Dec 22, 2004 6:15 pm Subject: How it hurts Apple
QuoteGuest wrote:
This is all true. I just don't understand how distributing the prerelease of Tiger hurts Apple exactly. Well, if they're sueing apparently it hurts them, so I'll get off the subject. I think that anyone can register for ADC though and get the damn prerelease.
Among other things it can hurt Apple's reputation. A developer gets a prerelease to test their product. If it gets to the general public and causes problems and then the word would get out that the Tiger is bug ridden.
QuoteRealityCheck wrote:
Wow a sneak peak at the latest bloatware from Apple. Maybe a new way to locate files or a new arrangement of system preferences. What could be cooler. These guys really let the cat out of the bag giving MS a huge opportunity to copy all the new features and gain market share, right?
Apple's going to prove that someone was going to buy a Mac, then changed their mind to a PC because some of the new Tiger features may be coming to Windows? Oh yeah, and Santa is coming to town.
Apple's not going to sustain any damages, this is all part of the hype to the Mac faithful about how valuable Tiger is.
So, now you're an attorney, and a judge? Damages are determined by the court, you ninny. A dollar amount may be specified in the suit, but it isn't necessary. In any case, the major impact for the respondents will be the cost of defending themselves. Apple can make it VERY expensive by refusing to settle out of court for anything but a lot of money. The respondents, if Apple wins, might even have to pay Apple's legal costs. These guys are looking at financial ruin.
QuoteGuest wrote:
While many people do disagree with piracy, some people simply can't afford the sort of software they need to do their jobs. Consultants in particular have that problem because they have to be able to support their customers in a variety of software, but if they bought every video and graphic application there was, they wouldn't be able to provide the services they do at the prices they do.
Then, they should not be in business. Period. I teach riding and train horses. I pay a lot for liability insurance--the first 33 lessons I teach each year go just to pay for the insurance. That's a necessary cost of doing business if I don't want to court disaster.
What would these consultants think if they put together a system and their client just gave that system to someone else, another potential client? It's the same thing.
Wed Dec 22, 2004 8:19 pm Subject: It doesn't matter how much Apple will get
QuoteThey'll try to scare these kids and force them to settle.
If they're smart though, they'll just sit through court proceedings, and hire a decent lawyer.
And just how much do you think that will cost? Wanna bet that it is at least $10K to even get the lawyers working? Actually going to trial might cost another $10K or more.
Wed Dec 22, 2004 9:12 pm Subject: Re: It doesn't matter how much Apple will get
They’ll probably get another signature on another piece of paper … and never go to trial. All they’re looking for is the kids being scared s…less, and scaring potential imitators into respecting their NDAs.
These jerks apparently NEEDED to be made aware of the potential disaster their stupidity was exposing them to !
It is high time people started realizing that a sense of responsibility and honorability is a quality and not a vice …
Thu Dec 23, 2004 3:01 pm Subject: Not a quality - a necessity..
Quotejacrav wrote:
It is high time people started realizing that a sense of responsibility and honorability is a quality and not a vice …
Not a quality but responsibility and honorability must be a baseline in humanity. If you have neither, there are some folks in Iraq that have work for you - they call themselves freedom fighters, which is appropriate since they are fighting freedom.
Tue Feb 22, 2005 12:59 pm Subject: Actually you can successfully sue for business lost